Florida Senate - 2016                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1278
       
       
       
       
       
       
                                Ì774350ÆÎ774350                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/01/2016           .                                
                                       .                                
                                       .                                
                                       .                                
       —————————————————————————————————————————————————————————————————




       —————————————————————————————————————————————————————————————————
       The Committee on Governmental Oversight and Accountability
       (Ring) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 394.4615, Florida Statutes, is amended
    6  to read:
    7         394.4615 Clinical records; Confidentiality.—
    8         (1) CLINICAL RECORDS.—
    9         (a)(1) A clinical record shall be maintained for each
   10  patient. The record shall include data pertaining to admission
   11  and such other information as may be required under rules of the
   12  department. A clinical record is confidential and exempt from
   13  the provisions of s. 119.07(1). Unless waived by express and
   14  informed consent, by the patient or the patient’s guardian or
   15  guardian advocate or, if the patient is deceased, by the
   16  patient’s personal representative or the family member who
   17  stands next in line of intestate succession, the confidential
   18  status of the clinical record shall not be lost by either
   19  authorized or unauthorized disclosure to any person,
   20  organization, or agency.
   21         (b)(2) The clinical record shall be released when:
   22         1.(a) The patient or the patient’s guardian authorizes the
   23  release. The guardian or guardian advocate shall be provided
   24  access to the appropriate clinical records of the patient. The
   25  patient or the patient’s guardian or guardian advocate may
   26  authorize the release of information and clinical records to
   27  appropriate persons to ensure the continuity of the patient’s
   28  health care or mental health care.
   29         2.(b) The patient is represented by counsel and the records
   30  are needed by the patient’s counsel for adequate representation.
   31         3.(c) The court orders such release. In determining whether
   32  there is good cause for disclosure, the court shall weigh the
   33  need for the information to be disclosed against the possible
   34  harm of disclosure to the person to whom such information
   35  pertains.
   36         4.(d) The patient is committed to, or is to be returned to,
   37  the Department of Corrections from the Department of Children
   38  and Families, and the Department of Corrections requests such
   39  records. These records shall be furnished without charge to the
   40  Department of Corrections.
   41         (c)(3) Information from the clinical record may be released
   42  in the following circumstances:
   43         1.(a) When a patient has declared an intention to harm
   44  other persons. When such declaration has been made, the
   45  administrator may authorize the release of sufficient
   46  information to provide adequate warning to the person threatened
   47  with harm by the patient.
   48         2.(b) When the administrator of the facility or secretary
   49  of the department deems release to a qualified researcher as
   50  defined in administrative rule, an aftercare treatment provider,
   51  or an employee or agent of the department is necessary for
   52  treatment of the patient, maintenance of adequate records,
   53  compilation of treatment data, aftercare planning, or evaluation
   54  of programs.
   55  
   56  For the purpose of determining whether a person meets the
   57  criteria for involuntary outpatient placement or for preparing
   58  the proposed treatment plan pursuant to s. 394.4655, the
   59  clinical record may be released to the state attorney, the
   60  public defender or the patient’s private legal counsel, the
   61  court, and to the appropriate mental health professionals,
   62  including the service provider identified in s.
   63  394.4655(6)(b)2., in accordance with state and federal law.
   64         (d)(4) Information from clinical records may be used for
   65  statistical and research purposes if the information is
   66  abstracted in such a way as to protect the identity of
   67  individuals.
   68         (e)(5) Information from clinical records may be used by the
   69  Agency for Health Care Administration, the department, and the
   70  Florida advocacy councils for the purpose of monitoring facility
   71  activity and complaints concerning facilities.
   72         (f)(6) Clinical records relating to a Medicaid recipient
   73  shall be furnished to the Medicaid Fraud Control Unit in the
   74  Department of Legal Affairs, upon request.
   75         (g)(7) Any person, agency, or entity receiving information
   76  pursuant to this subsection section shall maintain such
   77  information as confidential and exempt from the provisions of s.
   78  119.07(1).
   79         (h)(8) Any facility or private mental health practitioner
   80  who acts in good faith in releasing information pursuant to this
   81  subsection section is not subject to civil or criminal liability
   82  for such release.
   83         (i)(9)Nothing in This subsection does not section is
   84  intended to prohibit a the parent or next of kin of a person who
   85  is held in or treated under a mental health facility or program
   86  from requesting and receiving information limited to a summary
   87  of that person’s treatment plan and current physical and mental
   88  condition. Release of such information shall be in accordance
   89  with the code of ethics of the profession involved.
   90         (j)(10) Patients shall have reasonable access to their
   91  clinical records, unless such access is determined by the
   92  patient’s physician to be harmful to the patient. If the
   93  patient’s right to inspect his or her clinical record is
   94  restricted by the facility, written notice of such restriction
   95  shall be given to the patient and the patient’s guardian,
   96  guardian advocate, attorney, and representative. In addition,
   97  the restriction shall be recorded in the clinical record,
   98  together with the reasons for it. The restriction of a patient’s
   99  right to inspect his or her clinical record shall expire after 7
  100  days but may be renewed, after review, for subsequent 7-day
  101  periods.
  102         (k)(11)A Any person who fraudulently alters, defaces, or
  103  falsifies the clinical record of a any person receiving mental
  104  health services in a facility subject to this part, or causes or
  105  procures any of these offenses to be committed, commits a
  106  misdemeanor of the second degree, punishable as provided in s.
  107  775.082 or s. 775.083.
  108         (2) COURT RECORDS.—
  109         (a) All pleadings, orders, and related records, and
  110  personal identifying information on a docket, held pursuant to
  111  this part are confidential and exempt from s. 119.07(1) and s.
  112  24(a), Art. I of the State Constitution.
  113         (b)Pleadings, orders, and related records, and personal
  114  identifying information on a docket, made confidential and
  115  exempt by this subsection may be disclosed by the clerk of the
  116  court, upon request, to:
  117         1. The petitioner.
  118         2. The petitioner’s attorney.
  119         3. The respondent.
  120         4. The respondent’s attorney.
  121         5. The respondent’s guardian or guardian advocate, if
  122  applicable.
  123         6. In the case of a minor respondent, the respondent’s
  124  parent, guardian, legal custodian, or guardian advocate.
  125         7. The respondent’s treating health care practitioner.
  126         8. The respondent’s health care surrogate or proxy.
  127         9. The respondent’s patient representative.
  128         10. A person or an entity authorized to view records and
  129  who has obtained a court order finding that there is good cause
  130  to release the records. In determining whether there is good
  131  cause for disclosure, the court shall weigh the need for the
  132  information to be disclosed against the possible harm of
  133  disclosure to the respondent.
  134         11. An agency or a person authorized to receive clinical
  135  records pursuant to paragraphs (1)(b) and (1)(c).
  136         (c) The exemption under this subsection applies
  137  retroactively.
  138         (d) A person, an agency, or an entity receiving information
  139  pursuant to this subsection shall maintain such information as
  140  confidential and exempt from s. 119.07(1) and s. 24(a), Art. I
  141  of the State Constitution.
  142         Section 2. The Legislature finds that it is a public
  143  necessity to make confidential and exempt from s. 119.07(1),
  144  Florida Statutes, and s. 24(a), Article I of the State
  145  Constitution, all pleadings, orders, and related records, and
  146  personal identifying information on a docket, held pursuant to
  147  part I of chapter 394, Florida Statutes, in order to preserve
  148  the privacy of the individual who is or who is alleged to have a
  149  mental illness. An individual’s personal health and mental
  150  health are intensely private matters. Making the pleadings,
  151  orders, and related records, and personal identifying
  152  information on a docket, of an individual who is subject to part
  153  I of chapter 394, Florida Statutes, confidential and exempt from
  154  disclosure will protect information of a sensitive personal
  155  nature, the release of which could cause unwarranted damage to
  156  the individual’s reputation. Publication of personal identifying
  157  information of such an individual on a physical or virtual
  158  docket, even if no other records were published, would defeat
  159  the purpose and protections afforded by this exemption because a
  160  record of the individual’s mental health proceedings would be
  161  available to the public. The Legislature further finds that the
  162  public disclosure of such pleadings, orders, and related
  163  records, and personal identifying information on a docket, would
  164  produce undue harm to an individual who has a mental illness or
  165  is alleged to have a mental illness. Furthermore, the knowledge
  166  that sensitive personal information is subject to public
  167  dissemination would have a chilling effect on the willingness of
  168  individuals to seek or comply with mental health treatment.
  169         Section 3. This act shall take effect July 1, 2016.
  170  
  171  ================= T I T L E  A M E N D M E N T ================
  172  And the title is amended as follows:
  173         Delete everything before the enacting clause
  174  and insert:
  175                        A bill to be entitled                      
  176         An act relating to public records; amending s.
  177         394.4615, F.S.; providing an exemption from public
  178         records requirements for pleadings, orders, and
  179         related records, and personal identifying information
  180         on a docket, held pursuant to part I of ch. 394, F.S.,
  181         relating to mental health services; authorizing the
  182         clerk of the court to disclose the records and
  183         information to specified persons upon request;
  184         providing for retroactive application; requiring a
  185         person, an agency, or an entity that receives certain
  186         information to maintain it as confidential and exempt;
  187         providing a statement of public necessity; providing
  188         an effective date.